Myanmar’s Freedom of Expression as a Broken Promise of the NLD

Yaw Bawm Mangshang analyzes the status of press freedom under the NLD-led government.

This post is part of Tea Circle’s “2018 Year in Review” series, which looks back at developments in different fields over the last year.

Media is widely recognized as the fourth pillar of democratic society. In Myanmar, the importance of media was only recently recognized in 2014 when the quasi-civilian government passed the News Media Law (No. 12/2014) with an objective of enabling the media to effectively function as the fourth pillar. The role of the media is especially important in countries like Myanmar, in terms of ensuring a smooth, democratic transition by enhancing transparency and accountability. Media balances the other three (executive, legislative, and judicial) pillars of democratic society, argued U Aung Hla Tun, deputy information minister (then the Vice Chairman of the Myanmar Press Council). Thus, it is generally believed to be common sense that, for the media to do its job properly, policies and laws are needed to support and protect freedom of expression. The 2015 Election Manifesto of the current governing party, the National League for Democracy (NLD), recognized this commonsense ideal, and promised to protect news media as the eyes and ears of the people— with the right to gather and disseminate news to inform the public about the activities of the three branches of government. However, Myanmar has recently received much criticism from both domestic and international media communities for its deteriorating press freedom. This article analyzes a few factors that have triggered such criticisms, and looks at the trend of freedom of expression, with regard to the coming years.

Brief background on media freedom in Myanmar

It is fair to note that the Union Solidarity and Development Party (USDP)-led government has set a high bar for liberalizing media, after decades of military dictatorship. The criticisms of the NLD-led government come out of the inability or unwillingness of the NLD to meet and surpass this bar. In order to understand why the standard is considered high, a brief history of recent press freedoms in Myanmar is necessary.

Myanmar was under a military dictatorship from 1962 to 2010, during which time press freedoms did not exist. The article “Under a Dark Cloud: Censorship in Burma” from The  Irrawaddy writer and poet Aung Din is a lively description of Burma’s ruthless censorship under the Press Scrutiny and Registration Board (“Board of Censor”) during military rule. Publishers were required to submit their personal biographies, as well as those of authors. Aung Din explains that the Censorship Board would simply ban the publication if the author was perceived to have connections with the democracy movement.

The current state of media freedom was only initiated in 2012 by the USDP, a party consisting largely of former army personnel (also known as the Tatmadaw). The USDP-led government came into power during the 2010 elections, which were boycotted by the NLD. This USDP-led government was applauded for its efforts to ensure media freedom when it abolished the notorious Censorship Board and passed several press-related laws— though these laws are still far from perfect. The Ministry of Information has also cooperated with journalists in the drafting of the Right to Information Law. These initial press freedoms can be likened to the first sunny summer day after a long cold winter. Commentator Sithu Aung Myint points out that the atmosphere of optimism created by the reforms led to some journalists to go so far as to demand the abolition of the Ministry of Information. The Minister of Information, then U Ye Htut, supported this idea and proposed the gradual transformation of the ministry into a Public Service Media entity that would be independent of government control.

When the NLD came to power as the people’s party in a landslide electoral victory in 2015, the government was expected to further liberalize freedom of expression— just as one would expect more sunshine after a long cold winter. Yet, many believe that the NLD has not yet delivered on its electoral campaign promises of freedom of expression. In Kyaw Kyaw Thein’s review of media development during the first year of NLD-led government in power, the seasoned broadcast journalist also wonders why the NLD has not done more for press freedom. Though less in numbers, Kyaw Kyaw Thein observes that there are still authorities who act like “super-human” beings. They set rules and make decisions for others, determining what is good and bad; they create and practice only the policies they like. They then excuse themselves by claiming it is for the benefit of the people, but provide no space for the public to question their claims or make complaints. Kyaw Kyaw Thein questions why the NLD has not done much when it comes to press freedom, given that it used to be at the forefront, fighting against the “super-human beings.” Meanwhile, there are people who argue that it was too early to judge the NLD’s performance in its first year, since this is the first time many in its ranks had been in power.

However, with the NLD now in its second year of government, freedom of expression in Myanmar has not improved. In the 2018 World Press Freedom Index compiled by Reporters without Borders (RSF), Myanmar ranks 137 out 180, a ranking 6 points below the previous year. The RSF assessment correctly points out that self-censorship continues in connection with government officials, and especially with the military. The media is also prevented from travelling to conflict-affected areas, and journalists who try to investigate have ended up in prison. According to Ko Thiha Thwe, a reporter, cameramen and commentator for Japan’s NHK news agency, media freedom in conflict areas has reached the level of the previous military regime. This decline of media freedom in conflict areas may be a deliberate attempt by authorities to hide human rights abuses, and continue their operations at will.

Amongst many controversial laws relating to the freedom of expression, Article 66(d) of the Telecommunication Law has been widely recognized as a retaliatory tool that people in powerful positions have used to harass or threaten those who try to hold them accountable. A 2017 report by the NGO Free Expression Myanmar (FEM) has identified 106 cases of criminal complaints made under 66(d) between November 2015 and November 2017— with 11 of these complaints made during the USDP-led government, and 95 under the NLD-led government. 58 of these 106 cases (or 55 percent of complaints) indicate that powerful people are trying to censor or punish the weak for criticism or allegations, according to the FEM report.

The NLD’s Unwillingness to Enact Substantial Change and Poor Public Consultation

The view of both civil society organizations and journalists in Myanmar is that the government and Tatmadaw remain the main threats to free speech and media freedom because they not only continue to use old oppressive laws, with no plan to amend them, but they also adopt new, oppressive laws. The entire legal framework— both laws of general and media specific application— poses a threat to media freedom, according to the nationwide survey of journalist’s opinions in May 2018 by Free Expression Myanmar. To the disappointment of many, the NLD-led government is not interested in making substantial amendments to the Telecommunication Law despite pressure from the media and activists. Media outlets and activists argue that Article 66(d) of the Telecommunication Law has no place in a democratic society, and have lobbied for its abolition. Resultant amendments to 66(d) were minor, and only addressed the possibility of lesser prison terms, of bail, and of stopping third parties from making a complaint under 66(d).

In fact, President U Win Myint, then the Speaker of Lower House or Pyithu Hluttaw, has made a number of arguments to justify the existence of Article 66(d) of the Telecommunications Law. U Win Myint argues that the victims of defamation need legal protection and access to justice. He asserts that the article is also needed for the stability of society because the defamation clause in the Penal Code is not strong enough.

In addition to the NLD’s lack of interest in making substantial amendments to controversial press freedom laws such as 66(d), civil society organizations and the media community have complained about the NLD’s inadequate public consultation and cooperation on many issues, including freedom of expression. A Pen America Press Release notes that the government provides little to no room for public participation in drafting laws. For instance, the Citizens’ Personal Privacy and Personal Security Law was drafted and passed without public consultation. The law contains additional criminal defamation provisions and lacks components related to digital freedom and data protection. Moreover, Sithu Aung Myint also observes that few updates have been made since the unfinished efforts under the USDP-government to enact a Right to Information Law in cooperation with journalists and the Ministry of Information.

The NLD-led government is comparatively more difficult to approach and has excused itself for being too busy when requested for appointments to discuss laws and regulations. As Myanmar Press Council Vice Chairman U Aung Hla Tun (now Deputy Information Minister) said, “the three government pillars and the media still do not interact enough, not only in the states and regions, but also at the Union level.”

NLD Officials’ Intolerance of Criticism and the Victims of its Electoral Success

Former President Htin Kyaw, in his 2016 Myanmar New Year speech, asked people to point out the weaknesses of government policies as well as provide constructive comments and suggestions for improvement. However, assessments by Zoltan Barany, Daniel Aguirre, and Dateline Irrawaddy indicate that, in general, NLD officials have been quite sensitive to public criticism. In fact, unsought advice and constructive criticism are unwelcome in the NLD party and the government due to a culture of personal loyalty to Aung San Suu Kyi.

The NLD Central Executive Committee member U Win Htein was also reported as saying that NLD party members are not allowed to criticize the party in public and that the party will take action if they do. However, U Aung Kyi Nyunt (NLD CEC member and lawmaker in the Upper House) was brave enough, during the Central Executive Committee (CEC) meeting in June 2017, to point out what he referred to as the three dangers that the NLD would face at different levels. One of these was that the NLD might become a victim of its own electoral success, with some members’ pride in the NLD’s successes resulting in the unconscious display of an ‘I don’t care’ attitude in dealing with the media. Between April 2016 and August 2017, the NLD has received some 400 complaints against four regional and state chief ministers. Of the 400 complaints, the party’s complaint committee launched investigations into about 200 of the complaints and found 20 individuals guilty of misconduct. “A lot of complaints concern an arrogant or disdainful approach to the public, or the undesirable behavior of lawmakers in dealing with their peers and the party central executive committee (CEC) members” said Dr. Myo Nyunt, a CEC member and the head of the party’s complaint committee. In the Dateline Irrawaddy program on 1 July 2017, journalists discussed their experience with such attitudes in interviews with NLD officials. They found that most of the officials are sensitive to criticism, pointing out that NLD spokesperson U Win Htein was known for calling a reporter an idiot six times in an interview.

Silence Blurs the Line between Government and Army

To be fair, the quasi-civilian government operates under the formidable constraints within the military-designed political structure of the 2008 constitution. The constitution reserves 25 percent of seats in the union parliament and 33 percent of seats in region/state parliaments for Tatmadaw appointees, and gives the Tatmadaw veto power in changing the constitution. Moreover, the constitution gives the Commander-in-Chief of the Tatmadaw the right to nominate one of three vice presidents, appoint three union ministers (Ministers of Defense, Home Affairs, and Border Affairs) and appoint six of the eleven members in the National Security and Defence Council, which can declare a state of emergency and military takeover of the government. This means the government does not have control over all the armed forces, from the Tatmadaw to the myriads of local militias. Since the government falls under the Ministry of Home Affairs, it also does not have control over the General Administration Department (GAD), the key public bureaucracy which runs down from central to village track level.

People understand that the hands of the quasi-civilian government are tied on many issues and recognize the existence of two parallel governments in the military-designed political system. However, the NLD and Aung San Suu Kyi’s sustained silence on the Tatmadaw’s gross human rights violations across the country and its ongoing military campaigns against the ethnic armed organizations has blurred the line between the NLD-led government and Tatmadaw.

This silence has been very frustrating for non-Burman ethnic groups and the international community, given that even President Thein Sein issued orders more than once to cease military operations against the ethnic armed organizations during the USDP-led government. Though the orders were often ignored, they signaled the government’s disapproval of the military campaigns. The NLD’s silence has led many people to believe that NLD gives tacit approval to the Tatmadaw for various human rights violations and military operations.

As a verse from the Bible notes: “Love covers over a multitude of sins” but the NLD and Aung San Suu Kyi’s sustained silence has eroded the people’s love and admiration for her. Divided opinions in the international media debate whether to strip Aung San Suu Kyi of her various awards. Indeed, a few have been revoked – perhaps a sign of the eroding love and admiration for her in the international community. The state of love and admiration for her among domestic audiences will become evident in the upcoming by-election in November 2018 and general election in 2020.

Gearing up for the General Elections in 2020

The situation is increasingly politicized in the run-up to the 2020 general elections. As stated above, out of the 106 identified criminal complaints made under article 66(d) of the Telecommunications Law between November 2015 and November 2017, 90 percent of them took place under the NLD-led government. There were many widely publicized cases, for instance the arrests of three journalists charged with Article 17(1) of Unlawful Association Act, the arrest of Reuters reporters under the Official Secret Act, and the indictment of Rakhine political leader Dr Aye Maung under article 17(1) of Unlawful Association Act and Sections 121 and 505 of the Penal Code for clauses related to “high treason” and incitement.

There is little that the quasi-civilian government can do about these arrests under the 2008 Constitution. The motives behind these arrests are unclear, especially given that the NLD-led government has no control over the armed forces. These increasing arrests might have been deliberate attempts by the NLD’s political rivals for short-term political gain in the next election – with the implication that under the NLD-led government, there has been less freedom of expression under the NLD-led government and suggestions that the NLD is breaking its electoral campaign promise on press freedom. On the other hand, the NLD-led government and officials’ silence on these arrests might suggest their tacit approval. In any case, these arrests are clear indicators that the NLD-led government has secured less freedom of expression in its two years of power. Clear, too, is a downward trend for freedom of expression.

Future Trends for Freedom of Expression

There is much hope for freedom of expression in coming years if we are to take at face value President Win Myint’s inaugural speech in which he reiterated the importance of the media as the eyes and ears of the people. However, there are several indications which suggest otherwise.

First, as stated earlier, President Win Myint argued the need for Article 66(d) — the defamation clause which media and activists believe should be abolished. Additionally, though the NLD’s 2015 Election Manifesto promised freedom of expression, that freedom has yet to materialize in practice.

Second, General Min Aung Hlaing’s speech on Armed Forces Day on 27 March 2018 sent a clear message with the warning to ‘think twice before writing/publishing about the Tatmadaw’. He cautioned that the Tatmadaw would react with care and consciousness to baseless speech that lowered the prestige of the Tatmadaw in The Global New Light of Myanmar (28 March 2018, p-6), the state-owned English version newspaper. This will surely enforce self-censorship.

Third, there is growing pressure from both domestic and international circles to monitor social media platforms such as Facebook because it reportedly spreads the hate speech of ultra-nationalists. This has presented the government with a perfect opportunity to limit the freedom of expression on the Internet. The government has already formed the Social Media Monitoring Team with an initial budget of K6.4 billion (US$4.73 million) for the monitoring of social media.

Fourth, the government is content with the status quo on press freedom, despite the drop in rankings in the 2018 World Press Freedom Index. In U Aung Hla Tun’s response to the decline of Myanmar’s rankings for freedom of expression, he remarks that Myanmar still ranked above India, China and most of its ASEAN neighbors. This implies there is no sense of urgency within the government to improve press freedom.

Finally, if approved, the latest proposed amendments to the Peaceful Assembly and Peaceful Procession Law are worrisome for the freedom of expression. The proposed bill includes clauses that require protest organisers to provide the authorities with an estimated budget and source of funds. One can receive a three-year prison sentence and an unspecified fine if found guilty of provoking, persuading or urging anyone to join a peaceful assembly and peaceful procession through money or assets or other means, with the intent of shattering state security, law and order. Thus this law in principle could allow the police to arrest and charge people for simply offering even a bottle of water to protestor.

In short, the current situation with regard to press freedom indicates a mismatch between the words and deeds of the NLD-led government. The NLD has promised to inform the public about activities of the three branches of government in a transparent manner. There is official recognition of the news media as the eyes and ears of the people. Former President Htin Kyaw even invited constructive comments on government policies and performance. However, in practice, the arrests of journalists under various laws and the charges under Article 66(d) of Telecommunications Law— in which those in power try to threaten or punish their critics— demonstrate that it is dangerous to point out the shortcomings of the government policies in the current state of press freedom. Press freedom has become worse under the NLD-led government, and the broader trend for media freedom is certainly worrisome. The good news is that the NLD still has two and half years to correct the declining trend of press freedom and to prove that it is a trustworthy party.

To fulfill its electoral promise on freedom of expression, the NLD could start by immediately dropping all press freedom related charges against detained individuals, including journalists; scrapping the proposed amendments of Peaceful Assembly and Peaceful Procession Law; and initiating public consultation to finalize and pass the “Right to Information Law” in accordance with the public wills and international standards on freedom of expression.

Yaw Bawm Mangshang is an independent observer based in Yangon. He earned an MA in Law and Diplomacy from The Fletcher School, Tufts University. See more on his Facebook page.

Image Credit: May 12, 2018 photo by Sai Aung Min from AFP for Reuters